In May, the agencies published controversial draft guidance — “Identifying Waters Protected by the Clean Water Act” — representing the Obama Administration’s response to Supreme Court decisions in 2001 and 2006 limiting federal CWA permitting authority over “isolated wetlands” and bodies of water without a “significant nexus" to traditional navigable waters such as lakes, rivers or harbors.

The agencies said they expected their guidance to dramatically increase the number of” isolated wetlands,” “ephemeral streams” and “other waters” (a term that has not been defined) that would require federal wetlands permits.

Along with other industry stakeholders, NAHB had urged the agencies to withdraw the guidance and undertake a formal rulemaking instead.

It remains unclear when the rulemaking will begin, and there are concerns that the process will be used to simply codify what was presented in the draft guidance.

An EPA spokeswoman said recently that the agency was still working on both the guidance and on proposing a rule.

NAHB, other trade associations and Sen. James Inhofe (R-Okla.), ranking member of the EPW Committee, have called on the EPA and the Corps to begin the formal rulemaking with a fresh slate in clarifying the meaning of “waters of the U.S.”